TaxTMI 
TaxTMI 
2020 (10) TMI 563
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....of Income Tax Act 1961 and principles of natural justice . 2. The Ld. CIT(A) has grossly erred on facts as well as in law in confirming the addition made by the learned assessing officer under section 50C in spite of the fact that the impugned properties are leasehold properties. 3. The Ld.CIT(A) has grossly erred on facts as well as in law in confirming an addition of Rs. 240,77,29,683/- under section 50C in spite of the fact that the learned AO himself has already completed the assessment at the returned income in the first part of the assessment order on page 2 thereof. 4. The Ld.CIT(A) has grossly erred on facts as well as in law in confirming the assessment order which is passed without waiting for the report from the DVO on the reference made under section 50C(2) in complete violation of the provisions of Income Tax Act 1961, hence leading to the assessment order being ex-facie illegal, arbitrary and without jurisdiction. 5. The learned CIT(A) has grossly erred on facts as well as in law in confirming the addition of Rs. 240,77,29,683/- under section 50C of the Income Tax Act 1961. 6. The learned CIT(A) has grossly erred on facts a....
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....7,79,799/- . Since the consideration received by the assessee as a result of the transfer of the six properties in question was lower than the value adopted by the 'Stamp Valuation Authority' for the purposes of payment of stamp duty, the Assessing Officer required the assessee to show cause as to why Section 50C of the Act be not invoked for the purpose of computation of Capital Gains. Notably, Section 50C(1) of the Act provides that where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, then the value so adopted or assessed or assessable shall, for the purposes of section 48 of the Act, be deemed to be the full value of the consideration received or accruing as a result of the transfer for the purposes of computing Capital Gains thereof. In response, the assessee company resisted the action of the Assessing Officer, as is manifested by the communication addressed to the Assessing Officer dated 26.12.2017, a copy of which is placed at....
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....report of the DVO was canvassed to be "not acceptable on merits". In view of this, the Commissioner of Income Tax(A) dismissed the appeal of the assessee in toto and confirmed the addition as made by the Assessing Officer, thereby treating the report of the DVO as unmerited. Be that as it may, the assessee is not satisfied with the order of the learned Commissioner of Income Tax(A) and is in further appeal before us on the aforesaid Grounds of appeal. 6. Before us, the first and foremost plea raised by the assessee is that the invoking of section 50C of the Act in the present case is wholly unwarranted inasmuch as the 'capital asset' in question does not fall within the purview of section 50C(1) of the Act. It has been pointed out that Section 50C(1) covers "a capital asset, being land or building or both" whereas in the present case, the assessee has transferred merely the leasehold rights in the property inasmuch as the land was available with the assessee only as 'a Lessee', with New Okhla Industrial Development Authority, being the Lessor. It was pointed out that the expression used in section 50C i.e. 'land or building or both" would not include leasehold right in land or b....
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....f the Act and that the instant argument was based on the facts already on record; and, that the argument is confined to the interpretation of the legal provision which has been specifically invoked by the lower authorities. It was further contended that the issue is very much arising from the subject matter considered by the learned Commissioner of Income Tax(A), i.e., the applicability of Section 50C of the Act. Notwithstanding the aforesaid, the learned representative asserted that even if it was to be taken as a new plea, the assessee was competent to raise it before the Tribunal inasmuch as it involved interpretation of a legal aspect, for which the necessary facts are already on record; and, in this regard, reliance was placed on the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Co.Ltd. Vs. CIT - 293 ITR 383 (SC). 9. We have carefully considered the rival submissions. As our discussion in the earlier paragraphs show, the sum and substance of the preliminary controversy revolves around the applicability or otherwise of section 50C of the Act to the facts and circumstances of the instant case. Shorn of other details, Section 50C(1) of the Act....
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....n this view of the matter, in our considered opinion, the point sought to be raised by the assessee deserves to be upheld. Such a distinction also has found approval of the Hon'ble Bombay High Court in the case of C.I.T. vs Greenfield Hotels & Estates Pvt. Ltd. (supra) and other Tribunal decisions which have been referred to in the earlier part of this order. Apart from that, we find that a recent decision of our Coordinate Bench in the case of of Manish Traders vs ITO in ITA No. 4481/D/2016 dated 22.7.2019 (reported in 2019 (7) TMI 1268 - ITAT Delhi has observed that assessee's leasehold right for a period of 90 years in question is a capital asset to which provisions contained u/s 50C are not applicable. 12. Now, we may turn to the argument of the learned C.I.T. DR that it is impermissible for the assessee to agitate the aforesaid point because the same has not been raised before the lower authorities. We have given our anxious thought to the aforesaid plea and find that the same is untenable as misconceived. Firstly, it is nobody's case that the action of the lower authorities of invoking Section 50C of the Act in the present case is not being resisted by the assessee. In fac....